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Loyola University - Access Denied-Public Records and Incarcerated People, 2023

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LOYOLA
UNIVERSITY

NEW ORLEANS

COLLEGE OF LAW
LEGAL STUDIES RESEARCH PAPER SERIES
PAPER NUMBER 2023-05

Access Denied: Public Records
and Incarcerated People
Andrea Armstrong, Dr. Norman C. Francis
Distinguished Professor of Law
19 U. St. Thomas L.J. 220 (2023)
This paper can be freely downloaded from the
Social Science Research Network at:
https://ssrn.com/abstract=4421471

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ARTICLE

ACCESS DENIED: PUBLIC RECORDS
INCARCERATED PEOPLE

AND

ANDREA C. ARMSTRONG*

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I. STATE PUBLIC RECORDS LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. History and Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Purposes of Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Efficiency and Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Potential Improper Use or Motive . . . . . . . . . . . . . . . . .
II. EXCLUSIONS AND LIMITATIONS FOR INCARCERATED PEOPLE .
A. Ineligible to File . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Limits on Types of Records . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Creating Practical Obstacles . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Limited Damages for Incarcerated Plaintiffs . . . . . . .
2. In Person Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Internal Facility Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D. Requiring Additional Review or Permission . . . . . . . . . . .
1. Review by Correctional Agency . . . . . . . . . . . . . . . . . .
2. Review by Court or Judge . . . . . . . . . . . . . . . . . . . . . . . .
III. VARIATIONS IN SCOPE OF EXCLUSIONS . . . . . . . . . . . . . . . . . . . .
A. Pre-trial / Jail v. Convicted / Prison . . . . . . . . . . . . . . . . . . .
B. Mandatory v. Discretionary Exclusion . . . . . . . . . . . . . . . . .
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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* Professor of Law, Loyola University New Orleans, College of Law. Yale (J.D.);
Princeton (M.P.A). Sincere thanks to Angel Williams and Lale Brown for their research assistance
for this essay. The author is also thankful for comments from Katie Schwartzmann, David Marcello, and participants in the Detention Workshop Series held by the Tulane University Murphy
Center on Law and the Economy. This essay was written for the University of St. Thomas Law
Journal Spring 2022 symposium on “Prisoner Rights and Prison Conditions.”

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INTRODUCTION
Ten years ago, I received a request from a person incarcerated in a
Louisiana prison for assistance in obtaining the police investigative files
associated with their criminal case. More requests followed, including assistance in obtaining recent court opinions, non-security related policies and
procedures for government agencies, news articles, legislative reports, draft
bills and newly enacted legislation, and past versions of now modified laws.
Many of these materials are either publicly available on the internet or via
public records requests to the government authority. However, in Louisiana,
if a person is incarcerated pursuant to a felony conviction and has exhausted
their appeals, he or she is deemed ineligible to file public records requests
for most matters.1
A central question for scholars of incarceration law and policy is,
“what are the boundaries of acceptable punishment after a criminal conviction?” Our current system combines removal and exclusion from community with the provision of minimal necessities and lesser rights in forced
congregate living.2 How we, as a society, treat people in custody is the
irreducible core of citizenship and belonging. Certain legal rights may never
be violated while incarcerated, while other rights are treated as secondary to
other institutional and societal priorities like punishment, security, rehabilitation, efficiency, and order. This symposium essay investigates a narrow
aspect of the American system of incarceration by analyzing how states
limit access to public records by people who are incarcerated. This essay’s
primary contribution is to identify and categorize the statutory limits on
access to public records across all fifty states for people in custody.
All American states provide the public with access to government
records under public records laws, also known as freedom of information
laws, sunshine laws, and right to know laws. Access is framed as a statutory
right created by affirmative law and in some cases is limited to residents or
citizens in the state.3 This right is not unlimited; in fact, all of the state laws
protect certain types of records from disclosure, particularly records that
include private individual information and security-related information.4
States have also diminished the cost and effort for the general public to
1. LA. STAT. ANN. § 44:31.1 (2022) (creating exclusion except for materials related to postconviction relief as specified in the Louisiana Code of Criminal Procedure).
2. Sharon Dolovich, Exclusion and Control in the Carceral State, 16 BERKELEY J. CRIM. L.
259, 267–68 (2011).
3. See, e.g., KY. REV. STAT. ANN. § 61.872(1) (West 2022) (requiring requestor to be a
“resident of the Commonwealth”); TENN. CODE ANN. § 10-7-503 (West 2022) (requiring records
“be open for personal inspection by any citizen of this state”); State of Tennessee, Public Records
Policy for the Office of the Governor 2 (July 8, 2019), https://www.tn.gov/content/dam/tn/
governorsoffice-documents/governorlee-documents/Governors%20Office%20Public%20Records
%20Policy%20adopted%202019%2007%2008.pdf (last visited Nov. 19, 2022) (noting requestor
must be a Tennessee citizen).
4. These general access limitations are discussed more fully in Section I.B.

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obtain public records through providing online databases and allowing requests and production via email.5 But people in custody do not retain this
right in all fifty states.
Public records access may be particularly meaningful for incarcerated
people. Prisons, jails, and detention centers are often physically isolated
from their broader communities. People in custody do not have ready access to the internet, media sources (newspapers, television, radio), or books.
Their communications with people outside of the facility, whether family
and friends, journalists, or elected officials, are monitored and in some
cases, subject to censorship. In a variety of ways large and small, people in
custody involuntarily reside in “information deserts.”6 Excluding incarcerated people from public records access only strengthens carceral secrecy.7
Moreover, people in custody may have a unique claim for access to
public records. Several courts have noted that intent and purpose are now
irrelevant to government compliance with their state public records laws.8
Nevertheless, as a normative matter, there is special meaning in recognizing
that people in custody use public records laws to access information related
to their own confinement.
People in custody may want to access their prison disciplinary records
to contest violations that resulted in discipline or prevent them from early
release.9 They may seek access to their own medical records, or more
broadly, agency policies on medical treatment to advocate for their own
healthcare.10 They may rely on records of their incarceration for proving
their rehabilitation in petitions for clemency.11 People in custody have also
used public records laws to request access to facility policies on inclement
5. Michael Shamos, Privacy and Public Records, in PERSONAL INFORMATION MANAGEMENT
262 (William Jones & Jaime Teevan eds., 2007).
6. See Myeong Lee & Brian S. Butler, How Are Information Deserts Created? A Theory of
Local Information Landscapes, 70 J. ASS’N FOR INFO. SCI. & TECH. 101, 110 (2019) (utilizing the
term “information deserts” to describe “material aspects of information inequality or information
poverty”).
7. Andrea C. Armstrong, Carceral Secrecy (forthcoming Winter 2024) (draft on file with
author).
8. See, e.g., Phoenix New Times, L.L.C. v. Arpaio, 217 Ariz. 533, 544 (Ariz. Ct. App.
2008); Att’y Gen. v. Dist. Att’y for Plymouth Dist., 141 N.E.3d 429, 439 (Mass. 2020); Democratic Party of Wis. v. Wis. Dep’t of Just., 888 N.W.2d 584, 593 (Wis. 2016). But see Blankenship
v. City of Hoover, 590 So.2d 245, 250 (Ala. 1991) (upholding form for requests that allowed
finance department to determine if there was a “legitimate and proper purpose” for the records
request).
9. See Hickman v. Moya, 976 S.W.2d 360, 360 (Tex. Crim. App. 1998).
10. See, e.g., Moore v. Henry, 960 S.W.2d 82, 84 (Tex. Crim. App. 1996) (holding no
mandatory duty of prison officials to provide incarcerated plaintiff with his own medical records
under public records law); Giarratano v. Johnson, 521 F.3d 298, 306 (4th Cir. 2008) (upholding
denial of agency treatment policies for Hepatitis C from incarcerated plaintiff).
11. See Nabelek v. Bradford, 228 S.W.3d 715, 720 (Tex. Crim. App. 2006) (holding that
denial of records did not violate incarcerated petitioner’s First Amendment rights, despite claim
that he needed records for his clemency petition).

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weather12 and items available for purchase from the correctional agency.13
Incarcerated people may also want to be able to advocate for themselves in
the legislature,14 which is made more difficult when they do not have ready
access to proposed bills. Records of new legislative bills or enactments,
such as laws potentially impacting parole and good time calculations, may
be difficult to quickly obtain outside of the public records process. These
types of requests often are intended to hold the correctional agency (and the
government) accountable to its own policies and procedures.
Public records access can also be critical for challenging their criminal
conviction.15 Law enforcement and prosecutorial records may be necessary
to prove their wrongful conviction, particularly in cases where Brady16 evidence was improperly withheld from the defense. At the same time, people
in custody may not have had the resources, including effective trial or appellate counsel, for investigating and challenging the state’s case. Even putting aside the quality and availability of counsel, the U.S. Constitution also
recognizes a right for the defendant to meaningfully participate in their own
defense.17 As master of the facts in his or her own case, an incarcerated
defendant can identify gaps in the investigation and motives of named
witnesses.
This intersection between public records law and the carceral state is
underdeveloped in the scholarship. First, the majority of public records
scholarship focuses on the federal public records law, the Freedom of Information Act,18 and not state public records law. Of the approximately 2 million people held behind bars in the U.S. in 2022, approximately 300,000
people are detained on federal authority.19 The rest are incarcerated pursuant to state laws and are held in state, local, and private facilities. Moreover, much of the existing scholarship has focused on the implications for
12. Buehl v. Pa. Dep’t of Corr., 955 A.2d 488, 494 (Pa. Commw. Ct. 2008) (holding that
agency definition did not fall within general exemption for “personal security” records).
13. Greenhalgh v. Dep’t of Corr., 248 P.3d 150, 150 (Wash. Ct. App. 2011).
14. See, e.g., Josie Duffy Rice & Clint Smith, Justice in America Episode 5: Excluded from
Democracy, APPEAL (Aug. 22, 2018), https://theappeal.org/justice-in-america-episode-5-excludedfrom-democracy/ (interview with Norris Henderson, discussing legislative advocacy from behind
bars with the Angola Civics Project, a group founded by incarcerated men in prison).
15. See, e.g., Goodrum v. Quarterman, 547 F.3d 249, 252 (5th Cir. 2008), cert. denied, 556
U.S. 1130, 1613 (2009) (seeking records to defend against pending charge unrelated to crime for
which he was incarcerated).
16. Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”).
17. See Faretta v. California, 422 U.S. 806, 820 (1975) (interpreting Sixth Amendment to the
U.S. Constitution to include the right to self-representation).
18. 5 U.S.C. § 552; see also Christina Koningisor, Transparency Deserts, 114 NW. U. L.
REV. 1461, 1465–67 (2020) (noting dearth of scholarship on state and local public records laws).
19. Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2022, PRISON
POL’Y INITIATIVE (Mar. 14, 2022), https://www.prisonpolicy.org/reports/pie2022.html.

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media, not individual, access.20 But as described above, individual access
can be particularly meaningful for people in custody. Even when public
records scholarship has focused on the carceral state, the focus has been
either on general public access to information about the prison itself or the
difficulties of enforcing transparency vis-à-vis private prisons.21 The only
article to address this gap, which reviewed exclusions and limitations in
eight states, was published over twenty years ago.22 Since that time, additional states have restricted public records access for people in custody.
This essay addresses this gap in the literature by providing a fifty-state
overview23 of access to public records by people in custody, categorizing
the ways in which state law excludes incarcerated people, and discussing
the variations and implications of these laws. Notably, I only found one
instance where a state expanded, rather than limited, access for people in
custody, namely, Wisconsin. Even then, the expansion is limited to an extended timeframe for seeking a judicial order to require access to the public
record.24
In this essay, the aims and arguments are narrow. The primary goal is
to map and analyze the landscape of public records access for incarcerated
people, leaving normative arguments for a broader research project examining the role of law in carceral secrecy. And although this essay probes
whether or not these exclusions and limitations for incarcerated people are
justified, I offer no easy answers. Instead, this essay contributes to a broader
vein of scholarship that highlights the ways in which the law functions differently for people in custody.25
In Part I, I discuss public records generally, including their stated purposes and justifications for exclusion and limits. Part II categorizes the
ways in which these state laws intended to increase transparency and accountability nevertheless exclude incarcerated people, based on a review of
public records laws in all fifty states. Part III identifies thematic differences
20. See Koningisor, supra note 18, at 1467 (focusing on impact of state and local laws on
media).
21. See, e.g., Tara Parker, Private Prisons Behind Bars: Why Corrections Corporations Must
Abide by Public Information Laws, 48 TEX. TECH L. REV. ONLINE EDITION 39 (2016) (discussing
application to private prisons); Mike Tartaglia, Note, Private Prisons, Private Records, 94 B.U. L.
REV. 1689 (Oct. 2014) (discussing application to private prisons).
22. James Thomas Snyder, Restricting Prisoners’ Freedom of Information - Balancing Inmate Rights and Public Privacy Concerns, 2000 L. REV. MICH. STATE U. DETROIT COLL. L. 765,
766 (identifying and individually analyzing legislative intent for eight state statutes restricting
access for people behind bars).
23. Existing surveys of this subject by research and policy organizations appear incomplete
based on my review. Thus, this essay represents the first fifty-state overview of public records
restrictions for people who are incarcerated.
24. WIS. STAT. § 19.37(1m).
25. See, e.g., Dolovich, supra note 2; Margo Schlanger, The Constitutional Law of Incarceration, Reconfigured, 103 CORNELL L. REV. 357, 359 (2018); Justin Driver & Emma Kaufman, The
Incoherence of Prison Law, 135 HARV. L. REV. 515, 517 (2021); Aaron Littman, Free-World Law
Behind Bars, 131 YALE L.J. 1385 (2022).

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in the scope of these limitations. The essay concludes by identifying additional questions for understanding incarceration, including the tension between the rehabilitative and punishment purposes of incarceration.
I. STATE PUBLIC RECORDS LAWS
A. History and Overview
Statutorily protecting public access to government records is a relatively modern occurrence in the U.S., but with deep roots in the English
common law tradition.26 The common law structured a person’s right to
access government records according to their motive.27 Historically, people
with a “direct and tangible interest” in specific government records could
request access.28 As states began to codify their public access laws in the
early twentieth century, the motive of the requester continued to influence
access.29 A 1953 study on public records access found that ten states still
relied on the common law tradition, while the other thirty-eight states provided either general or specific access to public records.30 Within the states
with statutorily protected access, states precluded access by people “with a
destructive or other unlawful purpose”31 or people who were not “taxpayers” or “citizens.”32
However, states in the twentieth century began to adopt a broader notion of public records access. These states jettisoned restrictions based on
imputed motive in favor of access as a right of belonging and citizenship.
For example, the Michigan Supreme Court in 1928 explicitly connected
public access to a citizen’s participation in democracy.33 The court noted
“[i]f there be any rule of the English common law that denies the public the
right of access to public records, it is repugnant to the spirit of our democratic institutions. Ours is a government of the people. Every citizen
rules.”34 Modern state laws shifted to a “presumption of openness” with
26. While scholars link U.S. state court cases to the common law tradition, it is nevertheless
worth noting that in December 1776, Sweden adopted the “Freedom of Print Act,” which codified
public access to government records. See Dwayne Cox, The Rise of Confidentiality: State Courts
on Access to Public Records During the Mid-Twentieth Century, 68 AM. ARCHIVIST 312, 312
(2005); David Cuillier, The People’s Right to Know: Comparing Harold L. Cross’ Pre-FOIA
World to Post-FOIA Today, 21 COMMC’N L. & POL’Y 433, 435 (2016) (describing early state
cases under the common law, while acknowledging historical precedents); Jonas Nordin, The
Swedish Freedom of Print Act of 1776 - Background and Significance, 7 J. INT’L MEDIA & ENT.
L. 137, 138 (2017) (describing the history and purpose of the Swedish law).
27. Cox, supra note 26, at 312.
28. Cox, supra note 26, at 312.
29. Cuillier, supra note 26, at 446–47 (describing findings by Harold Cross’ 1953 study of
public records access in the U.S.).
30. Cuillier, supra note 26, at 443 (describing study).
31. Cuillier, supra note 26, at 446 (citing study).
32. Cuillier, supra note 26, at 447 (citing study).
33. Nowack v. Fuller, 219 N.W. 749, 750 (Mich. 1928).
34. Id.

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specific exclusions for certain records and away from motive-based
access.35
The federal Freedom of Information Act was first enacted in 1966.36
All fifty states now have public records laws as well, with many modeling
their new or amended state laws on the federal public records laws.37 The
structure of state public records laws are similar; they create “rights to citizens and groups that can request records, define the records that are subject
to and exempt from disclosure, provide guidance on allowable fees that can
be charged to the person requesting the records, identify procedures for enforcement of the law, and establish sanctions for noncompliance.”38
Modern public records laws perform several democracy-related purposes. As the U.S. Supreme Court noted, public records laws “ensure an
informed citizenry,”39 an essential element for a participatory democracy.40
Founding father James Madison explicitly recognized the power of public
records access for democratic purposes. “A popular Government, without
popular information, or the means of acquiring it, is but a Prologue to a
Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”41 Public records laws also
serve as a “check against corruption,”42 creating incentives for good behavior by government employees through the potential discovery of illegal acts.
Kentucky even acknowledges, in its public records law, the possibility of
“inconvenience or embarrassment to public officials or others.”43 Yet, unlike other countries, the right to access public records is not considered a
constitutional or fundamental right under federal law.44
Nevertheless, these laws are an instrument of public control over government actions. Through public records laws, the people can “hold the
35. Cuillier, supra note 26, at 458.
36. Act of September 6, 1966, Pub. L. No. 89-554, 80 Stat. 383, amended by Act of June 5,
1967, Pub. L. No. 90-23, 81 Stat. 56 (codified at 5 U.S.C. § 552 (1970)).
37. Roger A. Nowadzky, A Comparative Analysis of Public Records Statutes, 28 URB. LAW.
65, 65–66 (1996). But see Friends of Frame Park, U.A. v. City of Waukesha, 403 Wis.2d 1, 76 n.8
(Wis. 2022) (noting Wisconsin public records law was not modeled on federal Freedom of Information Act and noting differences between the two).
38. Keith W. Rizzardi, Sunburned: How Misuse of the Public Records Laws Creates an
Overburdened, More Expensive, and Less Transparent Government, 44 STETSON L. REV. 425, 429
(2015).
39. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978) (discussing federal
public records law).
40. See N.H. REV. STAT. ANN. § 91-A:1 (2022) (“Openness in the conduct of public business
is essential to a democratic society.”).
41. Letter from James Madison to W.T. Barry, LIBR. OF CONG. (Aug. 4, 1822), https://
www.loc.gov/item/mjm018999/.
42. Robbins Tire & Rubber Co., 437 U.S. at 242.
43. KY. REV. STAT. ANN. § 61.871 (West 2022).
44. Cuillier, supra note 26, at 435 (listing countries where the right to access public records
is a constitutional right).

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governors accountable to the governed.”45 This accountability function of
public records law operates through “expos[ing] government activity to
public scrutiny,” according to the Supreme Court of Ohio.46 The state of
Washington makes this element of government accountability explicit:
“The people insist on remaining informed so that they may maintain control
over the instruments that they have created.”47
Co-existing with these general democracy-related purposes, all state
public records laws include broad exclusions for certain categories of information.48 These categories of records are deemed non-public and therefore
not subject to access under state public records laws. Common categories of
exempted records include personnel, law enforcement,49 personally identifiable health information,50 and security of critical infrastructure or facilities51 (including, for example, blueprints for correctional facilities). These
exclusions apply to everyone regardless of a person’s conviction or custody
status.52
Plenty of states rely solely on those categorical exemptions to address
public records requests filed by people in custody. In states such as
Alaska,53 California,54 Delaware,55 Florida,56 Illinois,57 Massachusetts,58
45. Robbins Tire & Rubber Co., 437 U.S. at 242.
46. State ex rel. Gannett Satellite Info. Network, Inc. v. Petro, 80 Ohio St.3d 261, 264 (Ohio
1997).
47. WASH. REV. CODE § 42.56.030 (2022).
48. Professor Koningisor argues that the increasing number of exceptions is related, at least
in part, to “successful lobbying efforts of special interest groups.” For example, she notes that
twelve percent of laws passed in Florida in 2017 were exemptions to Florida public records laws,
which contain 1,000 exemptions. Koningisor, supra note 18, at 1507.
49. ALASKA STAT. ANN. § 40.25.120 (West 2022).
50. OHIO REV. CODE ANN. § 149.43(A)(1)(hh) (West 2022).
51. See, e.g., ALA. CODE § 36-12-40 (2022) (exempting “security or safety of persons, structures, facilities, or other infrastructures” from public records inspection for all requestors); VT.
STAT. ANN. tit. 1, § 317(c)(32) (West 2022).
52. See, e.g., OR. REV. STAT. ANN. § 192.345 (West 2022) (exempting certain records from
disclosure). Note that Oregon does not limit public records access on the basis of a person’s
custody or conviction status.
53. ALASKA STAT. ANN. § 40.25.110 (West 2022) (“[T]he public records of all public agencies are open to inspection by the public under reasonable rules during regular office hours.”).
54. CAL. GOV’T CODE § 62539(a-b) (West 2022) (“(a) Public records are open to inspection
at all times during the office hours of the state or local agency and every person has a right to
inspect any public record, except as hereafter provided. Any reasonably segregable portion of a
record shall be available for inspection by any person requesting the record after deletion of the
portions that are exempted by law. (b) Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records
that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if
applicable. Upon request, an exact copy shall be provided unless impracticable to do so.”). The
statutory code implements a broad right to access government information under the California
State Constitution. See CAL. CONST. art. I, § 3.
55. DEL. CODE ANN. tit. 29, § 10003 (West 2022). (“(a) All public records shall be open to
inspection and copying during regular business hours by the custodian of the records for the

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Nebraska,59 Oregon,60 and Pennsylvania,61 whether or not a person is incarcerated or convicted of a crime is statutorily irrelevant for accessing public
records. This is not to suggest that people in custody in the above states
have the same access as the non-incarcerated. There may be practical obstacles to accessing public records and some of those obstacles are greater
because of their incarceration. But as a matter of statute, these states do not
create a “separate class” of requestors for public records.62
Nineteen states restrict access to public records by people in custody
either by statute or court decision.63 Fifteen states take different (but varied)
appropriate public body. Reasonable access to and reasonable facilities for copying of these
records shall not be denied to any citizen.”)
56. FLA. STAT. ANN. § 119.07(1)(a) (West 2022) (“Every person who has custody of a public
record shall permit the record to be inspected and copied by any person desiring to do so, at any
reasonable time, under reasonable conditions, and under supervision by the custodian of the public
records.”); see also Smith v. State, 335 So. 3d 795, 797 (Fla. Dist. Ct. App. 2022) (discussing
numerous public requests filed by incarcerated individual and remanding for consideration of his
mandamus action to compel records access).
57. 5 ILL. COMP. STAT. ANN. 140/3(a) (West 2022) (“Each public body shall make available
to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.”); see also Holloway v. Meyer, 726 N.E.2d 678, 683 (Ill. App. Ct., 2nd
Dist. 2000) (noting the state public records law “creates a general right of access to public records
and includes no specific limitation on an inmate’s ability to exercise this right”).
58. MASS. GEN. LAWS ANN. ch. 66, § 10(a) (West 2022) (“A records access officer appointed
pursuant to section 6A, or a designee, shall at reasonable times and without unreasonable delay
permit inspection or furnish a copy of any public record . . . .”); see also Bradley v. Recs. Access
Officer, Dep’t of State Police, 174 N.E.3d 1212, 1214 (Mass. App. Ct. 2021) (discussing incarcerated plaintiff’s public records requests and holding that his status as a criminal defendant was
irrelevant to determining access under Massachusetts public records law).
59. NEB. REV. STAT. ANN. § 84-712 (West 2022) (“(1) Except as otherwise expressly provided by statute, all citizens of this state and all other persons interested in the examination of the
public records . . . are hereby fully empowered and authorized to (a) examine such records, and
make memoranda, copies using their own copying or photocopying equipment . . . .”); see also
Boppre v. Overman, No. A-15-1135, 2016 WL 6872978, at *6 (Neb. Ct. App. Nov. 22, 2016)
(noting “the Nebraska public records statutes, as they currently exist, do not limit Boppre’s access
to such records” but citing other more restrictive states).
60. See OR. REV. STAT. ANN. § 192.314 (West 2022) (“Every person has a right to inspect
any public record of a public body in this state, except as otherwise expressly provided by ORS
192.338, 192.345 and 192.355.”).
61. See 65 PA. STAT. AND CONS. STAT. ANN. § 67.701 (West 2022) (“Unless otherwise provided by law, a public record, legislative record or financial record shall be accessible for inspection and duplication in accordance with this act.”); see also Carey v. Pa. Dep’t of Corr., 61 A.3d
367, 370 (Pa. Commw. Ct. 2013), supp. No. 1348 C.D. 2012, 2013 WL 3357733 (Pa. Commw.
Ct. July 3, 2013) (assessing whether corrections agency properly complied with public records
request by incarcerated plaintiff under Pennsylvania’s Right to Know Law).
62. Snyder, supra note 22, at 766 (noting “[d]uring the 1990s, eight states amended their
freedom of information [hereinafter “FOI”] statutes specifically to restrict prison inmates’ access
to public records for security, privacy, and efficiency purposes. These states have approached this
issue in different ways, but each has labeled inmates as a separate class exempt from rights reserved for all other citizens. This new policy changes thirty years of statutory and common law
doctrine that considered the status of the requester and the purpose of the FOI request to be
irrelevant.”).
63. See App. for listing by state and source.

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statutory approaches: Arizona,64 Arkansas,65 Connecticut,66 Idaho,67 Kentucky,68 Louisiana,69 Michigan,70 New Jersey,71 Ohio,72 South Carolina,73
Texas,74 Utah,75 Virginia,76 Washington,77 and Wisconsin78 all statutorily
exclude or limit public records access based on whether or not the person is
incarcerated. In addition, four states have interpreted the state’s public
records law in a way that limits or precludes access by incarcerated people,
including Alabama,79 Florida,80 Illinois,81 and West Virginia.82 To the extent that public records access is intended to serve as a check against arbitrary or authoritarian decision making, exclusionary laws disempower
people in custody from participating in that function. Similarly, if public
records access performs an important accountability function, people in
custody become a group of people that accountability is not owed to.
The exclusions and limitations for incarcerated people draw on a principle well established in the English common law. As Professor Judith Resnik noted, “[c]arving out convicted prisoners from the new guarantees
reflected English common law traditions that were followed in many states
and that treated prisoners as ‘civilly dead’—unable to enter into or enforce
contracts, buy property, or use the legal system at all.”83 That principle,
which undergirds much of current incarceration law and policy, animates
more modern exclusions.
64. ARIZ. REV. STAT. ANN. § 31-221(D)–(E) (2022).
65. ARK. CODE ANN. § 25-19-105(B)(i) (West 2022).
66. CONN. GEN. STAT. ANN. § 1-210(c) (West 2022).
67. IDAHO CODE ANN. § 74-113 (West 2022).
68. KY. REV. STAT. ANN. § 197.025(2) (West 2022).
69. LA. STAT. ANN. § 44:31.1 (2022).
70. MICH. COMP. LAWS ANN. § 15.232(g) (West 2022).
71. N.J. STAT. ANN. § 47:1A-2.2 (West 2022).
72. OHIO REV. CODE ANN. § 149.43(B)(8) (West 2022).
73. S.C. CODE ANN. § 30-4-30 (West 2022).
74. TEX. GOV’T CODE ANN. § 552.028 (West 2022).
75. UTAH CODE ANN. § 63G-2-201 (West 2022).
76. VA. CODE ANN. § 2.2-3703(C) (West 2022).
77. WASH. REV. CODE ANN. § 42.56.565 (West 2022).
78. WIS. STAT. ANN. § 19.32(1) (West 2022).
79. Person v. Ala. Dep’t of Forensic Scis., 721 So. 2d 203, 204 (Ala. Civ. App. 1998) (requiring in-person review).
80. Fla. Institutional Legal Servs., Inc. v. Fla. Dep’t of Corr., 579 So. 2d 267, 267 (Fla. Dist.
Ct. App. 1991); Roesch v. State, 633 So. 2d 1, 2 (Fla. 1993) (imposing fees).
81. Howard v. Weitekamp, 57 N.E.3d 499, 502 (Ill. App. Ct. 2015) (applying DOC statutory
limitation to public records law for review of incarcerated person’s own “master record”); Holloway v. Meyer, 726 N.E.2d 678, 683 (Ill. App. Ct., 2nd Dist. 2000) (applying facility mail limitations to rights under public records review).
82. State ex rel. Wyant v. Brotherton, 589 S.E.2d 812, 816–17 (W. Va. 2003) (requiring
incarcerated person to use civil procedure laws to access files for habeas petition filing instead of
public records laws).
83. Judith Resnik, The Puzzles of Prisoners and Rights: An Essay in Honor of Frank Johnson, 71 AL. L. REV. 665, 668 (2020).

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State voting laws reflect a similar exclusion from participation in the
democratic state. Only two states (Maine, Vermont) do not restrict a person’s right to vote while serving a sentence for a criminal conviction.84
(Notably, neither of those states restrict access or eligibility for public
records for people in custody.) The majority of states restrict post-conviction voting, though the period of deprivation ranges from denial of voting
rights while incarcerated to post-release or post-supervision to lifetime
prohibitions.85 These voting restrictions, which have been upheld by state
and federal courts, only apply after conviction. People held in custody pretrial, at least in theory, fully retain their right to vote,86 even while detained
behind bars.
The exclusion from access to public records, however, is relatively recent after the country’s shift from motive-based access in the common law
to general statutory access by the 1970s. James Thomas Snyder, who published one of the few articles on this topic, writes that the turn towards
limiting access for incarcerated persons began in the 1990s.87 In the twenty
years since his article was published, limitations on public records access
exist in at least eighteen states. The legislative history of restricted access
law, as well as interpreting court decisions, illuminates common concerns
and motivations across states to limit access for people in custody.
B. Purposes of Limitation
To be clear, people in custody (and the general public) do not have a
constitutional right at stake when they are denied access to state public
records. The U.S. Supreme Court has held that “[n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government’s
control.”88 Even if there was a First or Fourteenth Amendment right to access, the Supreme Court has also held that there is no “constitutional right
to obtain all the information provided by [Freedom of Information Act]
laws.”89 Accordingly, civil rights lawsuits under 42 U.S.C. § 1983—the
84. Jean Chung, Voting Rights in the Era of Mass Incarceration: A Primer, SENTENCING
PROJECT 1 (July 2021), https://www.sentencingproject.org/wp-content/uploads/2015/08/VotingRights-in-the-Era-of-Mass-Incarceration-A-Primer.pdf.
85. Id.; see Campaign Legal Center, Challenging Jail-Based Disenfranchisement: A Resource Guide for Advocates 1, https://campaignlegal.org/sites/default/files/2019-12/Jail%20Voting%20Advocacy%20Manual.pdf (last visited November 18, 2022) (discussing the practical
barriers that contribute to low voter turnout in jails, such as difficulties securing an absentee
ballot, isolation from public resources that would inform votes, etc.).
86. O’Brien v. Skinner, 414 U.S. 524, 534 (1974).
87. Snyder, supra note 22, at 766 (discussing the following eight states: Connecticut, Louisiana, Michigan, New Jersey, Ohio, Texas, Virginia, and Wisconsin).
88. Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978).
89. McBurney v. Young, 569 U.S. 221, 232 (2013) (emphasis added).

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traditional federal vehicle for challenging conditions of confinement—by
incarcerated plaintiffs have generally failed.90
Incarcerated plaintiffs primarily make two types of Section 1983
claims91 challenging their exclusion or limited access: 1) the failure to provide access to records is a direct violation of the Fourteenth Amendment’s
Equal Protection Clause; 2) the defendants retaliated against the incarcerated plaintiff for filing a public records request in violation of the First
Amendment. Both of these claims fail because, as noted in the prior paragraph, the underlying activity (requesting public records) is not constitutionally protected and therefore government action is evaluated under a less
demanding standard of review.
Courts apply a rational basis level of review in these cases challenging
denial of public records requests or documents.92 The rational basis standard asks whether the government act is rationally related to a legitimate
government objective. Federal circuit and district courts have found that the
exclusion of people in custody from general public records requests, i.e.,
not involving records directly related to their cases, is constitutionally permissible. In so doing, these opinions also reveal the purposes served
through restricted access for people in custody.
1. Efficiency and Cost
Across several states, government agencies have invoked “preserving
scarce government resources” to limit or exclude incarcerated people from
general public access to records. As in other rational basis review cases,
preservation of resources is generally accepted as a legitimate government
purpose.93 Courts have concluded that “prisoners are more likely to abuse
the open records process”94 and that their requests are “burdensome and
frivolous.”95 The Seventh Circuit has analogized public records requests by
people in custody to litigation filed by incarcerated people, noting their
90. Brennan v. Aston, No. 17-CV-01928, 2020 WL 4808657, at *21 (W.D. Wash. June 8,
2020), report and recommendation adopted, No. 17-CV-01928, 2020 WL 4785458 (W.D. Wash.
Aug. 18, 2020).
91. Incarcerated plaintiffs have also unsuccessfully argued that their exclusion from public
records eligibility is equivalent to a denial of access to courts (through the inability to secure new
evidence) and thus a due process violation. See, e.g., Holt v. Howard, 806 F.3d 1129, 1133 (8th
Cir. 2015) (“[A] prisoner must establish [that] the state has not provided an opportunity to litigate
a claim challenging the prisoner’s sentence or conditions of confinement in a court of law, which
resulted in actual injury, that is, the hindrance of a nonfrivolous and arguably meritorious underlying legal claim.”).
92. Id. at 1132–33.
93. See Lyng v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am.,
UAW, 485 U.S. 360, 373 (1988).
94. Voss v. Carr, 2020 WL 1234433, at *9 (W.D. Wis. Mar. 13, 2020), aff’d, No. 20-2015,
2022 WL 2287560 (7th Cir. June 24, 2022), reh’g denied, No. 20-2015, 2022 WL 3007624 (7th
Cir. July 28, 2022) (citing cases).
95. Id.

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“proclivity for frivolous suits” given the “ample time on their hands.”96
Courts have not, however, interrogated state evidence or the reasons why
people in custody may be more likely to file.97
It is impossible to assess whether people in custody actually file more
public records requests or whether their requests are more likely to be frivolous. States do not generally publish statistics on public records requests,
disaggregate requests by the type of requester, or the scope of the requests
filed.98 Incarcerated people are not the only category of people who may
have “ample time on their hands.” People who are un- or underemployed,
for example, may have similarly unstructured time. But even assuming it is
true that people in custody file a higher number of requests than non-incarcerated people and that their requests are broader in scope, it is worth thinking about why.
People in custody may be more likely to file a public records request
precisely because they are incarcerated. First, carceral spaces create a barrier between the free world and the facility, frustrating a free flow of information from the outside. Prisons, jails, and detention centers are a type of
“informational desert,” where information is harder to access due to practical obstacles and facility-specific policies and procedures. To the extent that
people in custody have access to the internet via tablets, kiosks, and shared
computers, that access is subject to significant restrictions. As a practical
matter, people in custody cannot simply “google” information. Even if they
can electronically access the information, that information is difficult to
store or retain. They cannot save the found information electronically
(shared computer, low tablet storage space, no PDF software, etc.). They
also do not have ready access to printers. To the extent there are printers
available behind bars, they are usually located in the law library, to which
they may only have limited access (staffing, hours, etc.). Many facilities
will charge a fee per printed page, further raising the cost.
96. Lewis v. Sullivan, 279 F.3d 526, 528–29 (7th Cir. 2002). But see Margo Schlanger,
Inmate Litigation, 116 HARV. L. REV. 1555, 1567 (2003) (disputing argument that cases were
trivial based on review of data and actual complaints filed).
97. See, e.g., Giarratano v. Johnson, 521 F.3d 298, 304 (4th Cir. 2008) (holding “Giarratano’s conclusory allegation about the lack of a rational relationship between VFOIA’s prisoner
exclusion and any legitimate state interest is insufficient to plausibly state a claim for relief in
light of the strong presumption in favor of the legislation’s rationality and the readily apparent
justification for the legislation”).
98. But see Liz Wagenseller, 2021 Annual Report, PA. OFF. OF OPEN RECS. 3 (Mar. 14,
2022), https://www.openrecords.pa.gov/Documents/AnnualReport2021.pdf (noting almost 50% of
public records requests were filed by “everyday citizens” and 11.2% were filed by “inmates”). In
comparison, it is possible to examine the frequency of incarcerated plaintiff complaints filed in
federal court. See Andrea Fenster & Margo Schlanger, Slamming the Courthouse Door: 25 Years
of Evidence for Repealing the Prison Litigation Reform Act, PRISON POL’Y INITIATIVE (Apr. 26,
2021), https://www.prisonpolicy.org/reports/PLRA_25.html (discussing impact of the Prison Litigation Reform Act on civil rights filings challenging conditions of confinement and filing trends
over 1970–2018); see also Schlanger, supra note 96 (focusing on cases filed in federal court by
incarcerated plaintiffs in particular).

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Facilities have broad authority and discretion to control the flow of
information into and out of a prison or jail. Facility staff may ban or redact
information that is deemed a threat to internal order or security.99 They can
ban or limit access to certain information sources, such as the internet or
cable television. Even when people behind bars are allowed to have the
information, the facility barrier slows the arrival of information, such that it
is not quickly accessible for people in custody. In addition, modes of information, such as computers, facility periodical subscriptions, and televisions,
are shared among incarcerated people, a practical consequence of congregate living. Thus, there might also be delays to information as information
modes are shared among larger populations.
Second, as noted by Professor Margo Schlanger, a person’s relationship with the law is fundamentally different when incarcerated.100 It is allencompassing in the sense that law is what keeps someone involuntarily
confined while also regulating their daily life (work, food, visits, discipline).101 Excavating the reasons why might lead to alternative methods to
address governmental resource constraints.
2. Potential Improper Use or Motive
Another stated purpose for creating a separate class of requesters is
concern about “improper purposes.”102 As with efficiency concerns, these
claims are reviewed under a rational basis test. Courts have noted similar
concerns about incarcerated plaintiffs using litigation to harass “their accusers, the guards, and others who caused or manage their captivity.”103 Some
states have argued that public records access can also be used to “hamper
security or interfere with prosecutions.”104 This rationale is reminiscent of
the motive-based common law tradition of limiting access to people with a
direct and specific interest.105 In general, modern state public records laws
do not inquire into motive or intent for the request. Thus, in those states that
exclude or limit, the statute creates an irrebuttable presumption of improper
intent based primarily on a person’s custody or conviction status.
99. See Turner v. Safley, 482 U.S. 78, 91 (1987) (upholding censorship of correspondence);
Thornburgh v. Abbott, 490 U.S. 401, 404 (1989) (upholding censorship of incoming correspondence and publications).
100. Schlanger, supra note 96, at 1574.
101. For foundational analysis on how the significance of law is different for different populations, see Austin Sarat, “. . . The Law Is All Over”: Power, Resistance and the Legal Consciousness of the Welfare Poor, 2 YALE J.L. & HUMANS. 343 (1990).
102. Voss v. Carr, 2020 WL 1234433, at *9 (W.D. Wis. Mar. 13, 2020), aff’d, No. 20-2015,
2022 WL 2287560 (7th Cir. June 24, 2022), reh’g denied, No. 20-2015, 2022 WL 3007624 (7th
Cir. July 28, 2022) (citing cases).
103. Lewis v. Sullivan, 279 F.3d 526, 528–29 (7th Cir. 2002).
104. Sarah Geraghty & Melanie Velez, Bringing Transparency and Accountability to Criminal Justice Institutions in the South, 22 STAN. L. & POL’Y REV. 455, 460 (2011).
105. See discussion supra p. 225.

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For the majority of states, the general exclusions for certain types of
records, regardless of custody or conviction status, perform a similar function. It is therefore worth asking why the general exceptions are sufficient
in some states, but not others.
State public records laws are complex statutory instruments, often with
numerous exceptions modifying blanket and broad authority. The exceptions vary and may include limitations on certain types of records, the
agency from whom records can be requested, and the person eligible to
request access. The complicated nature of these public records laws—even
those that do not distinguish among requestors—can also facilitate an
agency’s broad invocation of exceptions. In Alabama, for example, a state
agency claimed the general security exemption prevented the disclosure of
prison incident reports to a non-incarcerated person.106 Even though the
Alabama Supreme Court ultimately found that the records should be public,107 the case also demonstrates the ways in which agencies interpret broad
and general exemptions for public records laws.
Beyond the statutory limitations and exclusions, there are also a number of practical obstacles that also limit access to records for all people,
including fees for copies of records, the volume of requests for a particular
agency (and the accompanying workload for government employees), and
the sometimes-extended timeframes for providing the records. Though having a law degree is not a required element for requesting public records, it
can certainly help—particularly when the agency responds with a blanket
exemption or redaction to the request. Within this already challenging universe of access to public documents, surveying public records laws across
all fifty states reveals additional limitations and exclusions for people in
custody for conviction of a crime.
II. EXCLUSIONS

AND

LIMITATIONS

FOR

INCARCERATED PEOPLE108

States do not limit access to public records in the same way. State
public records laws explicitly and implicitly limit access in a variety of
ways, including broad exclusions from eligibility to file requests; limitations regarding specific types of information; assigning gatekeeping functions to the state correctional authority; and requiring in-person review.

106. Allen v. Barksdale, 32 So. 3d 1264, 1266–67 (Ala. 2009).
107. Id. at 1273.
108. While the focus of this essay is exclusions and limitations for incarcerated people, it is
worth noting that provisions of state public records law that restrict access by incarcerated people
also, in some states, restrict people committed to institutions, such as psychiatric hospitals. WIS.
STAT. ANN.§ 19.32(3) (West 2022) (“‘Requester’ means any person who requests inspection or
copies of a record, except a committed or incarcerated person. . . .”).

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A. Ineligible to File
In some states, a person in custody is—by definition—ineligible to file
a public records request. This exclusion encompasses varying types of custodial facilities, including local jails, state and federal prisons, and other
detention facilities. Custody status (what type of facility) is usually consistent with a person’s conviction status (pretrial or convicted). Thus, people
held in jails are more likely to be pre-trial, with the accompanying legal
presumption of innocence. Jails may also hold people serving sentences of
less than a year for misdemeanor crimes. People in prison are generally
serving a sentence for a criminal conviction.
This broad articulation of the exclusion, which focuses primarily on
custody status, i.e., whether or not a person is in custody, is common among
exclusion states. It is also similar to 1950s era state limitations on public
records access for “citizens” or “taxpayers.”109 In Texas, the government is
not required to comply with a public records request from a person who is
confined in a municipal or county jail or a facility operated by (or under
contract with) the Texas Department of Criminal Justice.110 In Virginia,
“any person incarcerated in a state, local or federal correctional facility” is
specifically excluded from “any rights” under the state public records
law.111 Wisconsin follows a similar approach in excluding incarcerated people from the definition of an eligible “requestor,” but does allow incarcerated people to request records that are specific to that person or their minor
children.112 Kentucky stands alone by excluding people in custody (whether
jail or prison) and excluding people who are on “active supervision,” i.e.,
not in custody.113 However, the exclusion of people either in custody or on

109. See Cuillier, supra note 26, at 447.
110. TEX. GOV’T CODE ANN. § 552.028 (West 2022) (limiting access for people in a “secure
correctional facility”); TEX. PENAL CODE ANN. § 1.07 (West 2022) (defining “secure correctional
facility”).
111. VA. CODE ANN. § 2.2-3703(C) (West 2022). The Fourth Circuit Court of Appeals upheld
the constitutionality of the “Virginia Prisoner Exclusion Provision.” Fisher v. King, 232 F.3d 391,
399 (4th Cir. 2000).
112. WIS. STAT. ANN. § 19.32(3) (West 2022). For access to records about an incarcerated
person’s minor children, the person must not have been “denied physical placement” and the
“record is otherwise accessible to the person by law.” Id.
113. KY. REV. STAT. ANN. § 197.025(2) (West 2022). Kentucky does allow for records requests that pertain solely to the person in custody or on active supervision; thus, this exclusion
appears to target public records requests to the Department of Corrections (DOC) that are not
specific to individuals in custody or on active supervision. For example, this exclusion would
apply to public records requests for DOC policies and procedures, which would be relevant in
civil rights litigation alleging Eighth Amendment violations. Eighth Amendment litigation on conditions of confinement requires evidence of “deliberate indifference,” i.e., that the prison official
knew of, and disregarded, a substantial risk of harm. See Farmer v. Brennan, 511 U.S. 825, 837
(1994).

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active supervision only applies to records requested from the Kentucky Department of Corrections.114
Michigan, Arkansas, South Carolina, Louisiana, and Utah emphasize a
combination of conviction and custody to exclude access. In Michigan, an
eligible “[p]erson does not include an individual serving a sentence of imprisonment in a state or county correctional facility in this state or any other
state, or in a federal correctional facility.”115 Similarly, Arkansas denies
public records access to a “person who at the time of the request has
pleaded guilty to or been found guilty of a felony and is incarcerated in a
correctional facility.”116 South Carolina’s broad right to access “does not
extend to individuals serving a sentence of imprisonment”117 and in Utah,
agencies are not required to acknowledge or respond to requests from people in custody after conviction.118 Louisiana is slightly more narrow by also
considering the type of criminal conviction. Like other states, Louisiana
includes a broad right for “any person of the age of majority” to “inspect,
copy, or reproduce”119 or “obtain a copy or reproduction”120 of any public
record. However, the term “person” does not include individuals incarcerated for a felony conviction when the request is broader than the legal basis
for post-conviction relief.121
B. Limits on Types of Records
Several states, including those who limit eligibility and those that do
not, specifically limit access by incarcerated people to certain types of
records. For states that limit eligibility, states may still preserve a narrow
category of records that are available. For states where an incarcerated person is not categorically excluded, the limitation may only apply to certain
types of records.
114. KY. REV. STAT. ANN. § 197.025(2) (West 2022) (limiting requests from the “department”
which is defined as the Department of Corrections in KY. REV. STAT. ANN. § 197.010(3) (West
2022)). Kentucky law also prohibits hand delivery of a public records request for the Department
of Corrections from a “confined inmate.” KY. REV. STAT. ANN. § 197.025(4) (West 2022).
115. MICH. COMP. LAWS ANN. § 15.232(g) (West 2022).
116. ARK. CODE ANN. § 25-19-105(B)(i) (West 2022). The Eighth Circuit held that habeas
proceedings (including the ability to conduct discovery) provide a “safety valve” for this broad
eligibility exclusion. Holt v. Howard, 806 F.3d 1129, 1133 (8th Cir. 2015).
117. S.C. CODE ANN. § 30-4-30 (West 2022).
118. UTAH CODE ANN. § 63G-2-201 (West 2022).
119. LA. STAT. ANN. § 44:31(B)(1) (2022).
120. Id. § 44:31(B)(2).
121. Id. § 44:31.1 (citing LA. CODE CRIM. PROC. ANN. art. 930.3 for the legal grounds for
post-conviction relief, including conviction; violates state or federal constitution; exceeded
judge’s jurisdiction; violates double jeopardy; violates prosecutorial timelines; underlying statute
found unconstitutional; results in ex post facto application; or is proven factually innocent); see
also Hilliard v. Litchfield, 822 So. 2d 743, 746 (La. Ct. App. 2002) (holding incarcerated plaintiff
“was a ‘person,’ under the Public Records Act, when he made his request for the initial reports in
a letter dated May 24, 2000 because Hilliard’s appellate remedies were not exhausted until the
Louisiana Supreme Court denied his application for reconsideration on June 16, 2000”).

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For states where incarcerated people are ineligible, several states allow
requests that are related to their criminal matter. In Louisiana, a person
serving a sentence for a criminal conviction is generally not allowed to file
a public records request unless the request relates to efforts to obtain postconviction relief.122 Similarly, in Kentucky, people who are otherwise ineligible to file a public records request with the Department of Corrections
may still obtain records if “the request is for a record which contains a
specific reference to that individual.”123
There are similar provisions in states where incarcerated people are
generally eligible to file public records requests. In Ohio, people incarcerated for a criminal conviction are generally prohibited from obtaining public records relating to criminal investigations or prosecutions unless the
request relates to a “justiciable claim” in their case.124 In New Jersey, a
person convicted of an indictable offense, regardless of custody status, may
not obtain via public record request any records relating to the victim (or
their family) in their criminal case, unless necessary for the convicted person’s defense.125
Several states limit access by incarcerated people to their own records
of incarceration. While “[a]ll records of prisoner care and custody”126 are
subject to the Arizona public records act, an incarcerated person’s access is
limited to their own “automated summary record file.”127 Other states, including Illinois, are similar. In Illinois, where incarcerated people retain
eligibility to file public records requests, people in custody are nevertheless
generally prohibited from accessing their “master record files.”128
In Utah, state public records law takes a multi-pronged approach,
adopting limits on eligibility (custody and conviction) combined with limitations on type and quantity. An individual in custody following a conviction may file up to five public records requests within a calendar year for
records that specifically reference him or her.129 For all other requests by
122. LA. STAT. ANN. § 41:31.1 (2022).
123. KY. REV. STAT. ANN. § 197.025(2) (West 2022).
124. OHIO REV. CODE ANN. § 149.43(B)(8) (West 2022).
125. N.J. STAT. ANN. § 47:1A-2.2 (West 2022) (information that is excluded includes “a victim’s home address, home telephone number, work or school address, work telephone number,
social security account number, medical history, or any other identifying information”). Note that
some of this information may also be exempted from disclosure to the general public under
§ 47:1A-5.
126. ARIZ. REV. STAT. ANN. § 31-221(C) (2022) (all records are public except records that
reveal “identity of a confidential informant,” “endanger life” or “safety” of another, or “jeopardize
an ongoing criminal investigation”).
127. Id. § 31-221 (D)–(E).
128. Howard v. Weitekamp, 57 N.E.3d 499, 502 (Ill. App. Ct. 2015); see also IDAHO CODE
ANN. § 74-113 (West 2022) (restricting currently and formerly incarcerated people from the general right to inspect and amend records concerning oneself for records maintained by the custodial
authority).
129. UTAH CODE ANN. § 63G-2-201 (West 2022) (limiting right to access, but allowing exception for attorneys representing the individual).

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convicted individuals in custody, agencies are not required to “respond to,
or provide a record.”130
C. Creating Practical Obstacles
Some states have created practical obstacles or barriers to access public records. Only one of these obstacles specifically names people in custody, namely, Washington’s limitation on damages. The remaining
identified obstacles may apply to all requestors, but present specific difficulties for people in custody, as in Alabama, which requires in-person access. Similarly, the fees for copying the public records may, as a practical
matter, prevent access for people who are incarcerated due to their inability
to review in person (thereby minimizing fees) and their low prison
wages.131 More broadly, even if a person is eligible and can request copies
by mail and pay for those records, a prison or jail’s internal facility rules
may limit receipt of otherwise public records, as in Washington.
1. Limited Damages for Incarcerated Plaintiffs
In 2011, Washington adopted a new limitation that denies monetary
damages to a person serving a criminal sentence unless a court finds the
public records were denied to him or her in “bad faith.”132 This limitation
could be significant, since courts have discretion to order fines of up to one
hundred dollars a day for each day the person was improperly denied the
records, in addition to costs and attorney fees.133 This damages limitation
could have several secondary effects, including reducing government responsiveness and curtailing the ability of an incarcerated person to obtain
counsel to challenge denied access, ultimately reducing the “value of the
right” itself.134
The limited damages waiver essentially creates a higher intent standard
that solely applies to agency decisions denying records to incarcerated people. For a non-incarcerated requestor, “no showing of bad faith is necessary
before a penalty is imposed on an agency and an agency’s good faith reli130. Id.
131. Not all states pay wages for forced labor after conviction and even where a state does pay
wages, in 2017, the maximum average daily wage was $3.45. Wendy Sawyer, How Much Do
Incarcerated People Earn in Each State?, PRISON POL’Y INITIATIVE (Apr. 10, 2017), https://
www.prisonpolicy.org/blog/2017/04/10/wages/.
132. WASH. REV. CODE ANN. § 42.56.565(1) (West 2022).
133. Id. § 42.56.550(4) (“Any person who prevails against an agency in any action in the
courts seeking the right to inspect or copy any public record or the right to receive a response to a
public record request within a reasonable amount of time shall be awarded all costs, including
reasonable attorney fees, incurred in connection with such legal action. In addition, it shall be
within the discretion of the court to award such person an amount not to exceed one hundred
dollars for each day that he or she was denied the right to inspect or copy said public record.”).
134. See Pamela S. Karlan, Disarming the Private Attorney General, 2003 U. ILL. L. REV.
183, 185 (discussing remedial abridgement in civil rights cases).

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ance on an exemption does not insulate the agency from a penalty.”135
Damages for improper withholding create an incentive for agencies to “adher[e] to the goals and procedures dictated by the statute.”136 By removing
this incentive solely for requests by incarcerated people, the Washington
state law implicitly permits improper good faith denials without
consequences.
In addition, the damages limitation may impact the willingness of attorneys to litigate improper denials of public records to incarcerated people.
By providing for attorney fees and damages, federal and state laws incentivize private enforcement of laws to further the public good.137 Removing
this incentive is likely to have the same impact as attorney fee limitations in
the federal Prison Litigation Reform Act (“PLRA”), which sought to limit
prison conditions litigation and the ability of courts to order relief.138 After
the PLRA was enacted, federal court filings challenging conditions of confinement steeply declined.139
2. In Person Inspection
Alabama provides a general right to “[e]very citizen” to “inspect and
take a copy of any public writing of this state, except as otherwise expressly
provided by statute.”140 This broad access does not statutorily exclude people in custody.141 However, this statute has been interpreted to allow, but
not require, mailing copies of the requested document.142 Eric Person filed
a public records request while incarcerated in an Alabama prison.143 The
agency responded in writing, stating that “those documents are available for
inspection in the office here in Auburn between the hours of 8:00 a.m. and
5:00 p.m. Monday through Friday.”144 When Mr. Person challenged the inperson inspection as an effective denial of his right under the public records
law, the court found that the agency had in fact complied by offering an
135. Yousoufian v. Off. of Ron Sims, 229 P.3d 735, 744 (Wash. 2010).
136. Id.
137. Myriam E. Gilles, Reinventing Structural Reform Litigation: Deputizing Private Citizens
in the Enforcement of Civil Rights, 100 COLUM. L. REV. 1384, 1432 (2000).
138. See, e.g., Lynn S. Branham, Toothless in Truth? The Ethereal Rational Basis Test and the
Prison Litigation Reform Act’s Disparate Restrictions on Attorney’s Fees, 89 CALIF. L. REV. 999,
1003–13 (2001) (discussing PLRA provisions).
139. Margo Schlanger, Trends in Prisoner Litigation, as the PLRA Enters Adulthood, 5 U.C.
IRVINE L. REV. 153, 155 (2015).
140. ALA. CODE § 36-12-40 (2022).
141. Ex parte Gill, 841 So. 2d 1231, 1233 (Ala. 2002) (noting “[n]o statute denies this right to
inmates or felons”).
142. Person v. Ala. Dep’t of Forensic Scis., 721 So. 2d 203, 204 (Ala. Civ. App. 1998);
accord Ex parte Gill, 841 So. 2d at 1234 (noting the public records law “does not authorize a
citizen to shift to the custodian of public writings the tasks of inspecting them and identifying the
ones to be copied” nor does it “entitle inmates to any relief from their incarceration or to any
transportation to the custodian’s office to accomplish those tasks”).
143. Person, 721 So. 2d at 204.
144. Id.

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opportunity to inspect the records.145 In interpreting the statute, the court
held that the Alabama public records law “does not require the Department
to copy or to send the requested information.”146 This creates obvious difficulties for a person who has been judicially ordered to be confined in a jail
or a prison. Incarcerated people are not free to come and go as they please.
By allowing agencies to require in-person inspection to select records for
copy, the Alabama public records law creates a unique barrier to access for
people in custody.
3. Internal Facility Rules
Another practical obstacle is the carceral facility’s own internal regulations, policies, and procedures. Even if a person in custody is eligible to
request public records while incarcerated, actual receipt of those records
may be prohibited by facility mail and security policies. For example, in
Washington state, people in custody are not statutorily excluded from requesting public records. The Washington Department of Corrections received and responded to an incarcerated person’s request for the training
records of a correctional officer.147 However, the prison did not deliver the
mailed records to the incarcerated plaintiff under a departmental policy
prohibiting department employee records for incarcerated people.148 Instead, the records could be forwarded to a non-incarcerated person or destroyed.149 The Washington Supreme Court ultimately found that while the
state corrections agency has limited discretion on compliance with the public records law, it has broad discretion acting in its “custodial capacity” to
deny delivery of public records when considering “legitimate penological
interests, including prison security and order.”150 Similarly in Illinois, a
state appellate court upheld the authority of corrections authorities to withhold mail containing public records requested by incarcerated plaintiffs.151
4. Fees
Obtaining copies of public records often also entails paying fees associated with the reproduction or retrieval costs.152 Statutory requirements for
145. Id.
146. Id. at 205.
147. Livingston v. Cedeno, 186 P.3d 1055, 1056 (Wash. 2008) (en banc).
148. Id.
149. Id.
150. Id. at 1058.
151. Holloway v. Meyer, 726 N.E.2d 678, 683 (Ill. App. Ct. 2000).
152. Tae Ho Lee, Public Records Fees Hidden in the Law: A Study of Conflicting Judicial
Approaches to the Determination of the Scope of Imposable Public Records Fees, 21 COMMC’N L.
& POL’Y 251 (2016); see also Fla. Institutional Legal Servs., Inc. v. Fla. Dep’t of Corr., 579 So.
2d 267, 269 (Fla. Dist. Ct. App. 1991) (affirming denial of challenge to rule allowing “special
service charges” for public records request due to nature or volume of records brought by legal
advocacy organization).

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reproduction fees do not appear to be specific to people in custody but apply generally to any eligible requestor. While a full review of the public
records fee structures153 across states and localities is beyond the scope of
this essay, a few examples suffice to establish fee requirements as a potential practical obstacle154 for people in custody to request public records.
In Louisiana, for example, the fees for obtaining public records vary
across localities and can be prohibitively expensive for larger requests.155
The cost may also be prohibitive given the generally low rate of wages paid
by facilities for incarcerated labor, to the extent that wages are paid at all.156
As Justice Kogan noted in a Florida Supreme Court case discussing
mandatory fees for an incarcerated plaintiff seeking public records relevant
for his appeal, “Florida’s public records law now has been rendered into a
tool useful only to those who have money.”157
Incarcerated people also cannot circumvent public records fees like the
general public. Agencies may charge fees for reproduction or copying of
public records, but a free person can review the records in person, thus
avoiding the reproduction fee. Reviewing in person can also reduce the
amount of the fee. For example, an agency may produce all records related
to a particular topic, but by reviewing in person, a requestor can select a
subset of records produced for reproduction, thereby lowering the associated fees.
D. Requiring Additional Review or Permission
Several states require other government bodies to weigh in on the restricted access by people who are incarcerated, such as the Department of
Corrections or judges in state courts. This “gatekeeping” function encompasses a range of tasks that may include notification, restricting delivery, or
making specific findings on the request by the person in custody. Challenges to these “gatekeeping” decisions are generally reviewed under an
“abuse of discretion” standard.158
153. For a discussion on the types of fees associated with public records requests, see Lee,
supra note 152.
154. See Roesch v. State, 633 So. 2d 1, 2 (Fla. 1993) (affirming lower court holding that
incarcerated plaintiff “was not entitled to receive copies of documents under the Public Records
Act without paying for them”).
155. See East Baton Rouge Parish Sheriff Office, Invoice (Nov. 15, 2022) (fees included postage and $1/page for pages 1-25, .50/page thereafter, total $48.42); St. Tammany Parish Sheriff
Office, Invoice (Nov. 10, 2022) (fees included $15 per criminal incident report (up to 20 pages)
and .50/page for all other criminal reports, total $42); Ouachita Parish Sheriff’s Office, Invoice
(Nov. 23, 2021) ($1.25/page for first 50 pages require redaction and review, .25/page thereafter,
total $127). All invoices on file with author.
156. See Andrea C. Armstrong, Beyond the 13th Amendment—Captive Labor, 82 OHIO STATE
L.J. 1039, 1050–53 (2021) (discussing wages for incarcerated labor).
157. Roesch, 633 So. 2d at 3 (Kogan, J., dissenting).
158. See State v. Lather, No. S-08-036, 2009 WL 1875232, at *2 (Ohio Ct. App. 2009).

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1. Review by Correctional Agency
Government agencies in Connecticut rely on the state Department of
Corrections for requests by people in custody. Connecticut General Statute
§ 1-210(c) provides that the agency receiving the request from a “person
confined in a correctional institution or facility” must notify the Commissioner of Corrections before issuing the record.159 The Commissioner must
then determine whether the requested record is statutorily exempt from the
state Freedom of Information Act in the subsection listing potential safety
risks to residents, staff, and the correctional facility itself.160 If determined
to be exempt, the Commissioner may withhold the record from the person
in custody upon delivery of the requested records from the agency.161
2. Review by Court or Judge
Several states turn to the judicial arm of the state to perform the
gatekeeping function. In Washington, an agency may petition the court to
enjoin a public records request from a person serving a conviction in a
correctional facility. Courts may issue an injunction, for example, when the
requested records could be used to harass or intimidate an agency, its employees, or the correctional facility (including other residents).162 A judge
may also enjoin requests that “may assist criminal activity.”163 Courts will
review affidavits and declarations in a summary hearing and will assess the
burden and likely impact of the disclosure, the purpose of the request, and
other requests by the person serving a sentence, among other factors.164
159. CONN. GEN. STAT. ANN. § 1-210(c) (West 2022).
160. Id. § 1-210(b)(18) (including “(A) Security manuals, including emergency plans contained or referred to in such security manuals; (B) Engineering and architectural drawings of
correctional institutions or facilities or Whiting Forensic Hospital facilities; (C) Operational specifications of security systems utilized by the Department of Correction at any correctional institution or facility or Whiting Forensic Hospital facilities, except that a general description of any
such security system and the cost and quality of such system may be disclosed; (D) Training
manuals prepared for correctional institutions and facilities or Whiting Forensic Hospital facilities
that describe, in any manner, security procedures, emergency plans or security equipment; (E)
Internal security audits of correctional institutions and facilities or Whiting Forensic Hospital facilities; (F) Minutes or recordings of staff meetings of the Department of Correction or Whiting
Forensic Hospital facilities, or portions of such minutes or recordings, that contain or reveal information relating to security or other records otherwise exempt from disclosure under this subdivision; (G) Logs or other documents that contain information on the movement or assignment of
inmates or staff at correctional institutions or facilities; and (H) Records that contain information
on contacts between inmates, as defined in section 18-84, and law enforcement officers . . . .”).
161. Id. § 1-210(c). Note that for cases concerning a person detained for federal immigration
violations in a state correctional facility, a state court found that the Commissioner may defer to a
reasonable federal agency finding on whether the record is restricted. Comm’r of Corr. v. Freedom
of Info. Comm’n, 52 A.3d 636, 654 (Conn. 2012).
162. WASH. REV. CODE ANN. § 42.56.565(2) (West 2022).
163. Id.
164. Id. at § 42.56.565(3) (“(a) Other requests by the requestor; (b) The type of record or
records sought; (c) Statements offered by the requestor concerning the purpose for the request; (d)
Whether disclosure of the requested records would likely harm any person or vital government

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Ohio’s approach also relies on the courts to make findings for a person
serving a sentence requesting access to records concerning their criminal
prosecution. Ohio limits access to records concerning criminal investigations or prosecutions for people who are serving a sentence for a criminal
conviction.165 However, if the record requested is 1) otherwise public and
2) the sentencing judge (or their successor) finds the records to be “necessary to support what appears to be a justiciable claim of the person,” the
agency is required to provide the record.166
In New Jersey, the court’s role is much more limited. New Jersey does
not limit eligibility for public records requests but does exclude people with
convictions for an indictable offense from requesting information related to
the victim of the crime. In cases where the information is related to a convicted person’s defense, the requestor can request the court’s determination
that the information is necessary for his or her defense.167
III.

VARIATIONS

IN

SCOPE

OF

EXCLUSIONS

Across these various types of limitations on public records access by
people in custody, statutory analysis also indicates varying approaches in
the scope of exclusions. Some states limit records for all incarcerated people, whether detained pre-trial or serving a sentence for conviction. States
also vary on whether the government body has the discretion to comply
with a public records request from an incarcerated person or whether the
exclusion is mandatory. Lastly, states vary in their acknowledgment of the
requestor’s appeal rights. Analysis of these variations highlights inconsistencies about the purposes of these limitations and exclusions.
A. Pre-trial / Jail v. Convicted / Prison
The U.S. Constitution, as interpreted by the courts, differentiates between people who are detained pre-trial and people who are incarcerated
after a conviction for a criminal offense. The most pronounced textual differentiation is visible in the Thirteenth Amendment, which prohibits slavery
and involuntary servitude unless the person has been legally convicted.168
Thus, people serving a sentence can be forced to work, while those detained
pre-trial generally cannot.169 Similarly, the Eighth Amendment’s prohibiinterest; (e) Whether the request seeks a significant and burdensome number of documents; (f)
The impact of disclosure on correctional facility security and order, the safety or security of correctional facility staff, inmates, or others; and (g) The deterrence of criminal activity.”).
165. OHIO REV. CODE ANN. § 149.43(8) (West 2022).
166. Id.
167. N.J. STAT. ANN. § 47:1A-2.2(b) (West 2022).
168. U.S. CONST. amend. XIII.
169. But see Andrea C. Armstrong, Unconvicted Incarcerated Labor, 57 HARV. C.R.-C.L. L.
REV. 1 (2022) (discussing the origin, application, and expansion of the judicially created “housekeeping” exception to the Thirteenth Amendment for people civilly detained and people detained
pre-trial for “personally related” chores).

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tion on “cruel and unusual punishment,” which governs conditions of confinement, only applies to those being “punished,” i.e., people who have
been convicted.170 A person detained pre-trial would rely on the due process guarantees under both the Fifth and Fourteenth Amendments to challenge their conditions of confinement.
Not all laws include this differentiation. The federal PLRA, which
structures and shapes civil litigation challenging conditions of confinement
in federal courts, does not distinguish by conviction status (pre-trial v. convicted) or by type of facility (jail v. prison).171 Neither does the federal
Prison Rape Elimination Act (“PREA”), which prohibits sexual abuse and
sexual harassment in correctional facilities and applies the same auditing
standards to jails and prisons.172
In general, restrictive public records laws—similar to voting laws—
distinguish between people held pre-trial and people who have been convicted.173 For example, in Louisiana, the public records exclusion is limited
to people who have exhausted their appellate remedies, and thus only applies to people who have been convicted.174 Similarly, people incarcerated
for a conviction in Louisiana are also ineligible to vote.175
In contrast, Virginia applies its public records exclusion to any person
incarcerated, regardless of their conviction status or holding facility.176 Virginia’s exclusion of people detained pre-trial from public records access
appears intentional. The exclusion is followed by a clause that acknowledges the exclusion should not burden an incarcerated person’s constitutional rights and specifically references the “right to call for evidence in
their favor in a criminal prosecution.”177 At the same time, a person detained pre-trial in Virginia retains the right to vote.178 Kentucky similarly
prohibits public records access for any person who is “confined in a jail or
170. U.S. CONST. amend. VIII.
171. 42 U.S.C. § 1997e.
172. 34 U.S.C. § 30301. PREA does distinguish in its auditing standards between lockups,
youth detention facilities, and prisons/jails.
173. See, e.g., ARK. CODE ANN. 25-19-105(B)(i) (West 2022) (excluding a person from requesting a record who, at time of request, “has pleaded guilty to or been found guilty of a felony
and is incarcerated in a correctional facility”); ARK. CONST. amend. LI, § 11(a)(4) (canceling
voter eligibility for people convicted of felony crimes and who have not “discharged their sentence or been pardoned”).
174. LA. STAT. ANN. § 44:31.1 (2022). Note that Louisiana’s exclusion also differentiates between the type of criminal conviction and only excludes those convicted of a felony offense.
175. Id. § 18:102(A)(1)(a).
176. VA. CODE ANN. § 2.2-3703(C) (West 2022).
177. Id.
178. VA. CONST. art. II, § 1 (limiting voting for people convicted of a felony). It is also important to note that though a person may be legally eligible to vote, detention pre-trial creates significant obstacles for exercising that right. See Aaron Mendelson, No Simple Solution to Helping
Voters in Jail Cast Ballots, PEW CHARITABLE TR. (Sept. 15, 2022), https://www.pewtrusts.org/en/
research-and-analysis/blogs/stateline/2022/09/15/no-simple-solution-to-helping-voters-in-jailcast-ballots.

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any facility,”179 but bars only those with convictions from voting.180 Wisconsin’s public records law also appears to include people detained pretrial. Wisconsin restricts access for any person incarcerated, defined as a
person in a “penal facility,”181 which includes county jails, and county and
municipal detention facilities.182 Like Virginia and Kentucky, Wisconsin
does not exclude people detained pre-trial from voting.183
This disconnect—in some states—between voting and public records
access is confusing. When we compare eligibility for state public records
access and voting, it is clear that in some states, if you are detained pre-trial,
you can vote but are not eligible to request public records available to the
general public. Conversely, there are states where a person is ineligible to
vote due to their conviction, but eligible to file a public records request.
The U.S. Supreme Court has upheld the right to vote as a fundamental
right and therefore restrictions on that right are subject to a higher level of
judicial scrutiny than the right to access public records. And perhaps it is
this specific constitutional protection for voting that explains why there
might be more significant barriers to public records access than voting.
However, public records access has also been justified as a statutory right to
ensure an informed voting populace. Accordingly, we would expect to see
similar restrictions given the intertwined nature of the rights.
B. Mandatory v. Discretionary Exclusion
In some states, the public records exclusion uses mandatory language
and in others, compliance with a public records request from a person in
custody is discretionary. Compare, for example, the eligibility exclusions in
Virginia and Texas. In Virginia, the exclusion appears mandatory by exempting people in custody from “any rights” created by the Virginia Freedom of Information Act.184 In contrast, the eligibility exclusion in Texas is
discretionary.185 A state appellate court affirmed the plain reading of the
statute, which neither prohibits nor requires compliance with a public
records request from an incarcerated person.186 Similarly, within the cate179. KY. REV. STAT. ANN. § 197.025(2) (West 2022).
180. KY. CONST. § 145; KY. REV. STAT. ANN. § 116.025(2) (West 2022) (“Any person
charged with or indicted for a crime, whether or not in custody for same, who has not yet been
convicted of the offense and who is not otherwise ineligible to vote, may vote . . . .”).
181. WIS. STAT. ANN. § 19.32(1c) (West 2022).
182. Id. § 19.32(1e).
183. WIS. CONST. art. III, § 2(4)(a).
184. VA. CODE ANN. § 2.2-3703(C) (West 2022).
185. Harrison v. Vance, 34 S.W.3d 660, 663 (Tex. App. 2000) (joining “sister courts in holding disclosure of information is discretionary when that information is requested by an individual
imprisoned or confined in a correctional facility, regardless of whether such information pertains
to the individual requesting it”).
186. Hickman v. Moya, 976 S.W.2d 360, 361 (Tex. Crim. App. 1998), cert. denied, 527 U.S.
1009 (1999) (holding “[a] governmental body is not required to furnish requested information to
an inmate but is not prohibited from disclosing information to an inmate pertaining to the inmate.

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gory of states that limit access by the type of record, some states have
mandatory limitations, while others employ discretionary limitations. Illinois, for example, uses mandatory “shall not” language to prohibit access
by an incarcerated person to their “master record.”187 In contrast, the language of Ohio’s limited scope exclusion for incarcerated people is permissive. In Ohio, a government agency “is not required to permit” an
incarcerated person serving a sentence access to records concerning criminal investigations or prosecutions, even though incarcerated people are generally eligible to file public records requests on other matters.188 Thus, Ohio
law enforcement and district attorney offices may, at their discretion, provide the investigative or prosecutorial records requested. If the access is
denied, the incarcerated person’s only recourse to obtain these types of
records in Ohio is to petition the sentencing judge.189
On the one hand, discretion by the responding agency provides a potential, albeit unpredictable, vehicle for access to public records. But it is
unclear if agencies actually utilize this discretion and to what extent. For
example, though the Texas statutory exclusion is discretionary, the Texas
Department of Criminal Justice maintains on its website that “some individuals are not eligible to use the PIA to obtain information. Examples of these
are inmates and people acting as agents for an inmate.”190
More broadly, the use of discretionary language implicates the purpose
of the exclusions. Courts have pointed to conservation of government resources and agency efficiency as legitimate reasons to exclude incarcerated
people from public records access.191 A clear statement of access or exclusion provides notice to a potential requestor about his or her eligibility or
Thus it is discretionary with Appellee whether to furnish the requested information to Appellant,
or to not furnish him the requested information.”); see also TEX. GOV’T CODE ANN. § 552.028
(West 2022) (“(a) A governmental body is not required to accept or comply with a request for
information from: (1) an individual who is imprisoned or confined in a correctional facility; or (2)
an agent of that individual, other than that individual’s attorney when the attorney is requesting
information that is subject to disclosure under this chapter. (b) This section does not prohibit a
governmental body from disclosing to an individual described by Subsection (a)(1), or that individual’s agent, information held by the governmental body pertaining to that individual.”).
187. Howard v. Weitekamp, 57 N.E.3d 499, 502 (Ill. App. Ct. 2015).
188. OHIO REV. CODE ANN. § 149.43 (B)(8) (West 2022); see also State ex rel. Daugherty v.
Mohr, No. 11AP-5, 2011 WL 6294495, at *2 (Ohio Ct. App. Dec. 15, 2011) (discussing claim by
incarcerated person for improper denial of public records concerning prison policies on “triplecell[ing]”).
189. OHIO REV. CODE ANN. § 149.43 (B)(8) (West 2022); see also State ex rel. Summers v.
Fox, 169 N.E.3d 625, 635–38 (Ohio 2020) (holding that public records requests by incarcerated
person’s father for investigative records were not subject to judge’s review since county failed to
prove father was acting as designee for his son).
190. Tex. Dep’t of Crim. Just., Executive Administration Services: Public Information Act,
https://www.tdcj.texas.gov/divisions/es/exec_services_public_information_act.html (last visited
Oct. 12, 2022).
191. See State ex rel. Russell v. Thornton, 856 N.E.2d 966, 968–69 (Ohio 2006) (“The General Assembly clearly evidenced a public-policy decision to restrict a convicted inmate’s unlimited access to public records in order to conserve law enforcement resources.”).

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247

access. However, discretionary language introduces uncertainty and costs to
the records request process.
An incarcerated person may attempt to file a public records request
without knowing whether or not he or she is eligible. The agency will then
have to exercise its discretion exercised on a case-by-case basis. The permissive language may also prompt an incarcerated person to appeal an
agency’s denial to a court in an attempt to clarify the rule for themselves or
others. The litigation of that appeal may entail additional costs as incarcerated plaintiffs seek evidence for an agency’s abuse of discretion. Thus, the
discretionary language may actually create additional costs for the agency
(individualized decisions, defense of denials) and for the courts (petitions to
appeal the denial in their case).
The mandatory language raises a different problem, namely, the assumption of improper motive. Only incarcerated people are assumed to
have an improper motive in states applying mandatory exclusion language.
For all other requestors, states have eschewed the common law tradition of
motive-based access in favor of open public records access. While
mandatory language may be more efficient for government agencies, discretionary approaches at least allow an opportunity for incarcerated people to
demonstrate a specific interest or need for the records, particularly in the
area of appellate rights.
CONCLUSION
Mapping the variety of ways in which a minority of states limit public
records access by incarcerated people reveals a lack of consensus among
states. To varying degrees, exclusionary states apply the disfavored common law motive-based test solely to incarcerated people, reserving the presumption of open access for the general public. More broadly, are these
limitations simply another example in a long list of restricting the rights and
participation of people in custody in our democratic society or do these
limitations perform a unique function unrelated to other restrictions? Why
have the majority of states not adopted these limitations and are more states
likely to enact similar exclusions or limitations? And though this essay catalogued the types of documents requested by people in custody, how important is this statutory right within the context of confinement in facilities that
face serious challenges in honoring the limited constitutional rights of incarcerated people in carceral spaces?
Despite the many questions raised by this more fulsome understanding
of public records access and incarceration, these laws underscore a broader
tension between the rehabilitative and punishment goals of incarceration. If
rehabilitation is the goal, as evidenced by programming and vocational
training in prisons, why deny incarcerated people access to yet another tool
of democracy? But if punishment is the primary goal, then why do some

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[Vol. 19:2

states only limit certain types of records instead of the broad exclusion typical of voting rights?
Part of the answer, I believe, lies in the purpose of the public records
laws themselves. A recurring purpose among the reviewed statutes is it allows individuals to hold their government accountable. States, to varying
degrees, have withheld the ability of incarcerated people to hold state agencies accountable. The prevalence of restrictions on accessing Department of
Corrections records in particular is consistent with the limitations on prison
conditions litigation enacted under the Prison Litigation Reform Act. In so
doing, these states’ laws shift the burden of accountability of carceral institutions to free individuals.

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249

APPENDIX

State

Alabama

Alaska

Arizona

Arkansas

California

Colorado

Connecticut

Public
Records
Statute:
Access

ALA. CODE
§ 36-12-40
(2022).
ALASKA
STAT. ANN.
§ 40.25.110
(West
2022).
ARIZ. REV.
STAT. ANN.
§ 39-121.01
(2022).
ARK. CODE
ANN. § 2519-105
(West
2022).
CAL. GOV’T
CODE
§ 6253(a-b)
(West
2022).
COLO. REV.
STAT. ANN.
§ 24-72-204
(West
2022);
COLO. REV.
STAT. ANN.
§ 24-72-304
(West 2022)
(Inspection
of criminal
justice
records).

Limited? Eligibility

Limited
Scope

Gatekeeping

Y

N

Y

Y

ARK. CODE
ANN. § 2519-105(a)(1)
(B)(i) (West
2022).

ARIZ. REV.
STAT. ANN.
§ 31-221(D)
(2022).
Holt v.
Howard, 806
F.3d 1129,
1133 (8th
Cir. 2015).

ARIZ. REV.
STAT. ANN.
§ 31-221(F)
(2022).

N

N

CONN. GEN.
STAT. ANN.
§ 1-210
(West
2022).
Y

CONN. GEN.
STAT. ANN.
§ 1-210(b)-(c)
(West 2022);
Comm’r of
Corr. v.
Freedom of
Info.
Comm’n, 52
A.3d 636, 654
(Conn. 2012).

Practical
Obstacle
Person v.
Ala. Dep’t of
Forensic
Scis., 721
So. 2d 203,
204 (Ala.
Civ. App.
1998).

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250

State

Delaware

Florida

Georgia

Hawaii

Idaho

Illinois

Indiana

Iowa

Kansas

unknown

Seq: 31

UNIVERSITY OF ST. THOMAS LAW JOURNAL
Public
Records
Statute:
Access
Limited? Eligibility
DEL. CODE
ANN. tit. 29,
§ 10003
(West
2022).
N

FLA. STAT.
ANN.
§ 119.07
(West
2022).
GA. CODE
ANN. § 5018-71 (West
2022).
HAW. REV.
STAT.
§ 92F-11
(2022).
IDAHO
CODE ANN.
§ 74-102
(West
2022).
5 ILL.
COMP.
STAT. ANN.
140/3(a)
(West
2022).
IND. CODE
ANN. § 514-3-3
(West
2022).
Iowa Code
Ann. § 22.2
(West
2022).
KAN. STAT.
ANN. § 45218 (West
2022).

Limited
Scope

Gatekeeping

3-APR-23

11:18

[Vol. 19:2

Practical
Obstacle

Fla.
Institutional
Legal Servs.,
Inc. v. Fla.
Dep’t of
Corr., 579
So. 2d 267,
267 (Fla.
Dist. Ct.
App. 1991);
Roesch v.
State, 633
So. 2d 1, 2
(Fla. 1993).

Y

N

N

Y

Y

N

N

N

IDAHO CODE
ANN. § 74113 (West
2022).
Howard v.
Weitekamp,
57 N.E.3d
499, 502 (Ill.
App. Ct.
2015).

Holloway v.
Meyer, 726
N.E.2d 678,
683 (Ill.
App. Ct.
2000).

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2023]
Public
Records
Statute:
Access
State
KY. REV.
STAT. ANN.
§ 61.872
(West
2022).
Kentucky
LA. STAT.
ANN.
§ 44:31
(2022).
Louisiana
ME. REV.
STAT. ANN.
tit. 1, § 408A (West
2022).
Maine
MD. CODE
ANN., GEN.
PROVIS. § 4103 (West
2022).
Maryland
MASS. GEN.
LAWS ANN.
ch. 66,
§ 10(a)
(West
Massachusetts 2022).
MICH.
COMP.
LAWS ANN.
§ 15.233
(West
Michigan
2022).
MINN. STAT.
ANN.
§ 13.03
(West
2022).
Minnesota
MISS. CODE
ANN. § 2561-5 (West
2022).
Mississippi
MO. ANN.
STAT.
§ 610.23
(West
2022).
Missouri
MONT.
CODE ANN.
§ 2-6-1003
(West
2022).
Montana
NEB. REV.
STAT. ANN.
§ 84-712
(West
2022).
Nebraska

unknown

Seq: 32

3-APR-23

ACCESS DENIED

Limited? Eligibility

Y

Y

KY. REV.
STAT. ANN.
§ 197.025(2)
(West 2022).
LA. STAT.
ANN.
§ 44:31.1
(2022).

N

N

N

Y

N

N

N

N

N

MICH. COMP.
LAWS ANN.
§ 15.231 &
232(g) (West
2022).

11:18

251

Limited
Scope

Gatekeeping

KY. REV.
STAT. ANN.
§ 197.025(2)
(West 2022).

KY. REV.
STAT. ANN.
§ 197.025(4)
(West 2022).

Practical
Obstacle

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252

unknown

Seq: 33

UNIVERSITY OF ST. THOMAS LAW JOURNAL

Public
Records
Statute:
Access
State
NEV. REV.
STAT. ANN.
§ 239.010
(West
2022).
Nevada
N.H. REV.
STAT. ANN.
New
§ 91-A:4(I)
(2022).
Hampshire
N.J. STAT.
ANN.
§ 47:1A-1
(West
2022).
New Jersey
N.M. STAT.
ANN. § 142-1 (West
2022).
New Mexico
N.Y. PUB.
OFF. LAW
§ 87-88
(McKinney
New York
2022).
N.C. GEN.
STAT. ANN.
§ 132-6
North
(West
2022).
Carolina
N.D. CENT.
CODE ANN.
§ 44-04-18
(West
North Dakota 2022).
OHIO REV.
CODE ANN.
§ 149.43
(West
2022).
Ohio
OKLA.
STAT. ANN.
tit. 51,
§ 24A.5
(West
2022).
Oklahoma
OR. REV.
STAT. ANN.
§ 192.314
(West
Oregon
2022).
65 PA.
STAT. AND
CONS. STAT.
§ 67.701
(West
Pennsylvania 2022).

Limited? Eligibility

Limited
Scope

Gatekeeping

3-APR-23

11:18

[Vol. 19:2

Practical
Obstacle

N

N
N.J. Stat.
Ann.
§ 47:1A-2.2
(West 2022).

Y

N

N

N

N

Y

N

N

N

OHIO REV.
CODE ANN.
§ 149.43(A)
(8) (West
2022).

OHIO REV.
CODE ANN.
§ 149.43(A)
(1)(h) (West
2022).

OHIO REV.
CODE ANN.
§ 149.43(B)
(8) (West
2022).

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2023]

Utah

Vermont

Virginia

Seq: 34

3-APR-23

ACCESS DENIED

Public
Records
Statute:
Access
State
38 R.I. GEN.
LAWS ANN.
§ 38-2-3
(West
Rhode Island 2022).
S.C. CODE
ANN. § 30South
4-30 (West
2022).
Carolina
S.D.
CODIFIED
LAWS § 1South Dakota 27-1 (2022),
TENN. CODE
ANN. § 107-503 (West
2022).
Tennessee

Texas

unknown

Limited? Eligibility

N

Y

N

N

TEX. GOV’T
CODE ANN.
§ 552.021
(West
2022).
Y
UTAH CODE
ANN.
§ 63G-2-201
(West
2022).
Y
VT. STAT.
ANN. tit. 1,
§ 316 (West
2022).
N

VA. CODE
ANN. § 2.23704 (West
2022).

S.C. CODE
ANN. § 30-430 (West
2022).

Y

TEX. GOV’T
CODE ANN.
§ 552.028
(West 2022);
Hickman v.
Moya, 976
S.W.2d 360,
360 (Tex.
Crim. App.
1998); Moore
v. Henry 960
S.W.2d 82,
84 (Texas
Crim. App.
1996).
UTAH CODE
ANN. § 63G2-201 (West
2022).

VA. CODE
ANN. § 2.23703(C)
(West 2022);
Giarratano v.
Johnson, 521
F.3d 298, 306
(4th Cir.
2008).

Limited
Scope

11:18

253

Gatekeeping

Practical
Obstacle

\\jciprod01\productn\U\UST\19-2\UST203.txt

254

State

Washington

WASH. REV.
CODE
§ 42.56.070
(2022).
Y

W. VA.
CODE ANN.
§ 29B-1-3
(West
West Virginia 2022).

Wyoming

Seq: 35

UNIVERSITY OF ST. THOMAS LAW JOURNAL
Public
Records
Statute:
Access

Wisconsin

unknown

Limited? Eligibility

Gatekeeping

11:18

[Vol. 19:2

Practical
Obstacle
WASH. REV.
CODE
§ 42.56.565
(2022);
Livingston v.
Cedeno, 186
P.3d 1055,
1056 (Wash.
2008).

State ex rel.
Wyant v.
Brotherton,
589 S.E.2d
812 (W. Va.
2022).

Y

WIS. STAT.
ANN.
§ 19.35
(West
2022).
Y
WYO. STAT.
ANN. § 164-202 (West
2020).
N

Limited
Scope

3-APR-23

WIS. STAT.
ANN.
§ 19.32(1)
(West 2022);
WIS. STAT.
ANN.
§ 19.32(3)
(West 2022).

WIS. STAT.
ANN.
§ 19.37(1m)
(West 2022).

 

 

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